Mack v. Dexter , 365 F. App'x 822 ( 2010 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                              FEB 16 2010
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    ALVIN BENSON MACK,                               No. 07-56392
    Petitioner - Appellant,             D.C. No. CV-06-00356-SJO
    v.
    MEMORANDUM *
    DEBRA DEXTER,
    Respondent - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    S. James Otero, District Judge, Presiding
    Argued and Submitted February 11, 2010
    Pasadena, California
    Before: THOMAS and SILVERMAN, Circuit Judges, and BEISTLINE, ** Chief
    District Judge.
    Alvin Benson Mack appeals the district court’s denial of his 28 U.S.C. §
    2254 habeas petition asserting that his California three strikes sentence of 27 years
    to life for violating Cal. Penal Code § 290 violates the Eighth Amendment. We
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Ralph R. Beistline, United States District Judge for the
    District of Alaska, sitting by designation.
    have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and reverse and remand
    with instructions to grant the petition.
    We review the district court’s denial of the habeas petition de novo.
    Gonzalez v. Duncan, 
    551 F.3d 875
    , 879 (9th Cir. 2008). Since the state court
    denied Mack’s claim without explanation, we independently review Mack’s claim
    to determine if the California Supreme Court unreasonably applied clearly
    established law. Davis v. Woodford, 
    446 F.3d 957
    , 960 (9th Cir. 2006).
    The record in this case establishes that the jury could have found – and
    likely did find – Mack guilty of merely failing to update his registration on his
    birthday, which the California courts regard as a mere technical violation of § 290.
    People v. Carmony, 
    26 Cal. Rptr. 3d 365
    (Ct. App. 2005); People v. Cluff, 105 Cal.
    Rptr. 2d 80, 86-88 (Ct. App. 2001). A sentence of 28 years to life for a technical
    violation of § 290 runs afoul of the Eighth Amendment. See 
    Gonzalez, 551 F.3d at 877
    .
    REVERSED AND REMANDED.
    2
    

Document Info

Docket Number: 07-56392

Citation Numbers: 365 F. App'x 822

Judges: Thomas, Silverman, Beistline

Filed Date: 2/16/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024